Vox Nova is pleased to welcome a guest post by James McGehee.
I grew up Catholic and Republican. I am now Catholic and politically independent. In my first three presidential elections, I voted for George W. Bush, John McCain, and Mitt Romney. This November will be different. I will not cast my vote for the Republican nominee and only pro-life candidate for the presidency. While the prospect of a President Donald J. Trump frightens me, I can’t, as many do, dismiss the voters who secured his nomination as ignoramuses and bigots. Trump received the rebel vote, the vote fed up with the status quo, one vote to make up for dozens wasted on your standard, well-mannered Republican. I get it, because I will be casting my own rebel vote, the vote that ends my days as a single-issue voter for the pro-life cause.
When Joseph Ratzinger was the cardinal who headed the Congregation for the Doctrine of the Faith, he sent a memorandum to United States bishops titled “Worthiness to Receive Holy Communion. General Principles.” The document makes clear the Church’s position that a Catholic cannot vote for a candidate forpolitical office because of that candidate’s permissive stand on abortion. When a Catholic does not share that stand, but votes for the candidate for other reasons, the Church considers this “remote material cooperation, which can be permitted in the presence of proportionate reasons.” The U.S. bishops have published their own reflections on political responsibility in “Forming Consciences for Faithful Citizenship.” They write that a Catholic may vote for a candidate who supports an intrinsic evil such as abortion “only for truly grave moral reasons, not to advance narrow interests or partisan preferences or to ignore a fundamental moral evil.”
What passes for “proportionate” or “truly grave” reasons? Depends who you ask. But if not consensus, there is a powerful and vocal contingent that believes it is every Catholic voter’s obligation to subject candidates to a pro-life litmus test. During the 2008 election cycle, two Texas bishops, Kevin Farrell and Kevin Vann, issued a joint statement declaring that there are no proportionate reasons, “singularly or combined, that could outweigh the millions of innocent human lives that are directly killed by legal abortion each year.” In the days leading up to the 2012 election, Bishop Daniel Jenky of Peoria, Illinois, addressed a similar letter to his diocese, condemning Catholics who vote for pro-choice candidates as “objectively guilty of grave sin.”
Whenever I hear a Catholic take this hard line, one underlying premise is that voting pro-life candidates into office will spare the untold lives that abortion claims. A changing political tide can of course bring about sweeping changes to public policy. In 2008, voters ushered Barack Obama into the presidency and gave Democrats a wide margin in both houses of Congress. In complete control of the political branches, Democrats passed an $800 billion stimulus package and major reforms to the healthcare and banking systems, all over opposition from Republicans. If a pro-life vanguard of Republicans were to conquer Washington in similar fashion, they could accomplish a good deal, but not by instituting a federal ban on abortion. Since 1973, when Roe v. Wade recognized a constitutional right to an abortion, the Supreme Court has given lawmakers little latitude in regulating abortion.
For this reason, the primary justification for pro-life voting is that politicians who stand by anti- abortion policies will reconfigure the ideological composition of the Supreme Court, until there are five justices who will vote to overturn Roe and its progeny. While no Supreme Court justice has ever recognized constitutional rights for the unborn, jurists who believe federal judges have little or no power to create constitutional rights not within the Constitution’s text and original meaning usually oppose what Roe (constitutionally speaking) stands for—the power of judges to recognize rights not within the document’s text and history, but within its contemporary spirit. (Abortion isn’t mentioned in the Constitution.) Because the latter view of the Constitution is associated with liberals, and the former with conservatives, undoing Roe requires a president sympathetic to a conservative reading of the Constitution.
The problem with this tactic is that Roe is as tenacious a Supreme Court precedent as exists. In 1992, the Court was presented with a chance to reconsider its abortion jurisprudence, in the case Planned Parenthood v. Casey. The nation was on its eleventh straight year under a Republican, pro-life president. Per the rule of thumb that a justice nominated by a Republican president is preferable for the pro-life cause, the circumstances were ideal—eight of the nine justices were Republican appointees. Yet the Court, by a slim majority, left Roe’s essential holding intact. The five justices who upheld abortion rights in Casey were all seated by a Republican president, and four of those justices were seated by presidents we have on the record espousing anti-abortion views. Since Casey, America has spent more than two decades with a Supreme Court that (until Justice Scalia’s passing) legal commentators viewed as one of the most conservative in history, a Supreme Court that made conservative inroads in numerous areas of law, and still Roe’s right to abortion survives without as much as a chip in its enamel.
Consider two other reasons that a president, no matter how determined to see Roe overturned, will face an uphill battle to that achievement. The first is the principle of stare decisis, which Black’s Law Dictionary defines as the “doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.” Although the Supreme Court has said that stare decisis is not an “inexorable command,” when faced with a litigant’s request to overrule a precedent, courts typically will decline. Stare decisis was central to the Court’s decision in Casey to reaffirm Roe, and the rule will continue to exert a thumb on the scale in favor of Roe’s retention. It is conceivable that even a justice who felt Roe was a terrible mistake would hesitate to jettison the almost half a century of constitutional law that has grown up around Roe.
A second hurtle is that no single president can entirely reform the Supreme Court. The nine justices enjoy lifetime tenures, and on the whole work past the average retirement age and live beyond the average life expectancy. A two-term president is lucky to appoint two or three justices. Most pro-life voters understand they are playing the long game, but because the White House see-saws between the country’s two major parties, every ostensible gain a Republican president makes toward sitting a Roe-adverse court is usually mitigated by a Democratic successor. The right to an abortion under Roe is not absolute, and so pro-life voters may feel that even with Roe’s longevity guaranteed it is worth electing politicians who will support modest anti-abortion legislation, giving the pro-life movement important, if not earth-shattering, victories. Indeed, some commentators have posited that one reason the rate of abortions has fallen drastically since 1990 is a corresponding rise of state- level restrictions on abortion. In testing Roe’s outer boundaries, legislators have learned that they have scarce room to regulate abortion. The most notable instance is Texas House Bill 2. Passed in 2013, the law required doctors performing abortions to have admitting privileges at a nearby hospital and mandated that abortion clinics be equipped as ambulatory surgical centers. In June, the Supreme Court struck down these provisions of the Texas law as unconstitutional burdens on a woman’s right to choose. Many recent laws designed to restrict abortion have met the same fate in the inferior federal courts. In 2012, Arizona enacted a “fetal pain law,” which prohibited abortion after twenty weeks’ gestation. Arkansas and North Dakota both enacted some form of a “fetal heartbeat law,” which would make abortion illegal as soon as a fetus’s heartbeat could be detected. Indiana passed a law banning abortions based solely on a fetus’s disability or genetic anomaly. All of these laws were axed on the judicial chopping block.
In my last stand as a single-issue voter for the pro-life cause, I fell back on character. A politician willing to defend the unborn, I once reasoned, must have superior moral fiber than a politician who either unapologetically supports abortion or demurs with the “I’m personally opposed but…” line. For better or worse, though, politics is an arena where practicality and compromise often co-opt principle, and a politician’s public persona does not always reflect his inner chamber. Congressman Scott DesJarlais, a Republican from Tennessee, claims to have a “100 percent pro-life voting record,” but he encouraged his ex-wife to terminate two pregnancies, and pressured a mistress of his to abort their child. As a presidential candidate, Gerald Ford supported a constitutional amendment to overturn Roe, but in the freedom of retirement he professed to be “strongly pro-choice” and urged the GOP to shift left on abortion. The pro-life Dennis Hastert sexually abused children. Character can be a compelling reason to vote for a candidate for office, but we cannot assume that publicly pro-life politicians, who do not necessarily hold the same view in private life, or practice what they preach, are more virtuous than their pro-choice peers.
I am not suggesting that Catholic voters not account for abortion when deciding which candidates will best serve the common good. Politicians can and do advance the pro-life agenda. Whether “proportionate” or “truly grave” reasons to vote for a pro-choice candidate exist this election cycle is a question each Catholic voter must submit to a well-formed conscience. Without wading into a discussion of the policy issues at stake in this election, I offer two additional considerations for the Catholic voter discerning whether it is morally permissible to vote for a pro-choice candidate. First, the pro-life movement would hardly suffer from having a stronger voice within the Democratic Party. To surrender an enduring American establishment to the ideological opposition only makes that opposition more formidable. Pro-life voices are needed within the Democratic Party. Abortion need not be a partisan issue.
Furthermore, the dictum that Catholics must vote for a candidate who publicly opposes abortion— expressed concisely on the “Vote Pro Life” bumper sticker ubiquitous in Catholic church parking lots—can send the mistaken message that the most vital action Catholics can take on behalf of the unborn is to vote a certain way. The Church’s stance on life issues is holistic; it calls upon Catholics to evangelize a “culture of life” that promotes the sanctity of human life from conception until natural death. If Roe is overturned, the issue of abortion would be returned to legislatures. Some states would promptly outlaw abortion with few exceptions, while others would uphold the status quo. The former group of sovereigns would have to determine how to prosecute those who facilitate abortion and which punishments to authorize. Through it all the political battles would drag on, this time with the legion of choice as underdogs. The end to Roe would save lives, but it would not produce the conditions to ensure lasting change—a stronger culture of life.
At a daily Mass I attended a few weeks ago, the priest interrupted his intercessory prayer on behalf of the unborn to remark that “when it comes to politics and a choice between parties, the choice is clear,” another nod to the GOP from the altar. But by allying the faith with the Republican Party—which, likes its rival, takes its share of criticism from the American bishops—such remonstrance ignores the murkiness inherent in politics and the primacy of culture. I end my days as a single-issue voter for the pro-life cause not by waving the white flag of surrender, but in the sincere belief that putting this stain on the national conscience behind us requires Catholics to rethink the way forward.